(2) The first Complainant also owns the domain name SIZESUNLIMITED.NET.

(3) The second Complainant is licensee of these trade marks and has made continuous use of them, in the United States since 1984, to refer to retail stores and as a trade mark for women’s apparel and accessories.

(4) The Respondent Cannibal registered the doman name SIZESUNLIMITED.COM on April 4, 1999 with Network Solutions, Inc.

5. Parties’ Contentions

A. Complainants

(1) The Complainants assert:

that the Respondents’ domain name at issue is identical with the first Complainant’s registered marks listed in Paragraph 4 above and with the mark used by the second Complainant as a business name and for the goods named in that Paragraph;

that while the Respondents have stated (in a communication of June 9 1999 – later reiterated on October 29, 1999) that they intend to use their domain name for an Internet business offering retail clothing, they at the same time offered to sell the domain name to the Complainants;

that the Respondents’ subsequently rejected a without prejudice offer to settle the matter by the Complainants and indicated that they were considering auctioning the domain name to the highest bidder (a possibility also repeated on October 29,1999);

that the Respondents are currently offering the domain name for sale on www.greatdomains.com for $500,000;

that this course of conduct shows that the Respondents have no rights or legitimate interests in respect of the domain name and that it has been registered and is being used in bad faith.

Accordingly the Complainants seek transfer of the domain name in issue to themselves.

B. Respondents

(2) The Respondents have not filed a response and the dispute has therefore to be determined on the basis of the Complainants’ assertions.

6. Discussion and Findings

(1) The Complainants’ allegations as set out in Paragraph 5(A) above are supported by the communications sent to them by the Respondents or on their behalf. It is to be noted in particular that in their first approach to the Complainants, the Respondents, while claiming to have no prior knowledge of the Complainants’ marks and business, nevertheless prefaced their offer to sell the domain name by stating that Internet users had been confusing their address with the Complainants’ business (citing in particular one colourfully unpleasant incident). This amounts to an admission that the Complainants’ marks were being confused with the Respondents’ domain name.

(2) The Respondents have apparently chosen not to explain their conduct by making a Response to the Complaint. On the record before it, the Panel therefore considers the conclusion inescapable that the Respondents have treated their domain name registration not as a basis for establishing some legitimate business but as basis for securing a payment under the offer to transfer the name which they made to the Complainants. Even on the basis of the Respondents’ assertion that, prior to the filing of the Complaint, when they initially contacted the Complainants they had no prior knowledge of the Complainants’ rights arising from registration and/or use in various countries, once they appreciated that there was confusion – as they say there was – they could not properly persist in this intention, since their proposal was to operate a business in the same field as the Complainants. At the same time, however, they were both offering to sell the domain name to the Complainants and were allegedly contemplating an Internet auction of the domain name. The Complainants’ offer in settlement of $5,000 was rejected as derisory. It thus became plain that the Respondents were after a sum well in excess of their own domain name costs. That as recently as December 27, 1999, the domain name was being offered for sale on the Internet for $500,000 simply confirms the obvious.

(3) The Panel concludes that the domain name has been registered and is being used in bad faith, consisting of

acquisition primarily for the purpose of transferring the domain name to the Complainant for valuable consideration in excess of costs directly related to the domain name; and

using or preparing to use the domain name so as intentionally to attempt to attract, for commercial gain, Internet users to the web site, by creating a likelihood of confusion with the Complainants’ marks and business name as the source, sponsorship, affiliation or endorsement of that web site.

7. Decision

(1) The Panel decides, in accordance with the Uniform Domain Name Resolution Policy, Paragraph 4:

that the domain name in dispute is identical with the registered trade marks and the service mark of the Complainants;

that the Respondents have no rights or legitimate interests in respect of the domain name; and

that it has been registered and is being used in bad faith.

(2) The Panel accordingly requires that the domain name SIZESUNLIMITED.COM be transferred forthwith to the first Complainant, The Avenue Inc.